Plaintiff B9/2014 v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGES: KENNY, EDMONDS, RANGIAH JJ DATE: 10 march 2015 PLACE: bRISBANE

REASONS FOR JUDGMENT 1 On 18 December 2014, the Court ordered that the appellant's appeal against a judgment of the Federal Circuit Court of Australia ("the Circuit Court") be dismissed and that the appellant pay the respondent's costs of the appeal. This costs order was vacated, however, when the appellant's legal representatives indicated that they wished to make specific submissions as to costs. The following are the Court's reasons for the costs order that it would make following its consideration of the parties' respective submissions on costs. 2 The proceeding before the Circuit Court was an application for judicial review of a decision made by a delegate of the respondent that the appellant's application for a protection visa was invalid. The Circuit Court dismissed the application and ordered that the appellant pay the respondent's costs of the application. 3 The application to the Circuit Court and the appeal to this Court turned on whether the appellant is an "unauthorised maritime arrival" within the meaning of that expression in s 5AA of the Migration Act 1958 (Cth) and whether the effect of s 10 is that the appellant is taken to have entered Australia when he was born. The Court decided those issues against the appellant and dismissed the appeal with costs. 4 In his written submissions, the appellant submits that there should be no order as to the costs of the appeal and, in addition, that the order for costs made by the Circuit Court should be set aside. The respondent seeks an order that the appellant pay the respondent's costs of the appeal and submits that the order for costs made by the Circuit Court should not be disturbed. 5 Under ss 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth), the Court has a discretionary power to award costs. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [11] (Black CJ and French J); Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67] (McHugh J) and 120-123 [134] (Kirby J); Seven Network Ltd v News Ltd (2009) 182 FCR 160 at 403 [1100]-[1101] (Dowsett and Lander JJ, Mansfield J agreeing); State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]-[7] (Emmett, Kenny and Middleton JJ); and Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 139 at [6] (Kenny J). 6 The appellant's contention that special circumstances exist to justify an order that each party bear its own costs relies heavily upon a comparison of the circumstances of the present appeal with those in Ruddock v Vadarlis (No 2). In that case, a solicitor and a civil liberties organisation had commenced proceedings seeking writs of habeas corpus and mandamus in respect of 433 non-citizens said to be unlawfully detained by the Commonwealth on the ship MV Tampa. The primary judge found in favour of the applicants, but that judgment was set aside by the Full Court on appeal. Following the judgment of the Full Court, Parliament passed an Act which retrospectively declared valid the actions taken by the Commonwealth and prohibited proceedings in respect of such actions. 7 On the question of costs, Black CJ and French J held that the appropriate disposition was that there should be no order as to the costs of the appeal or the application to the primary judge. Their Honours concluded at 242 [29]: This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which [many] of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J. 8 The appellant's legal representatives submit that a number of the considerations that influenced the outcome in Ruddock v Vadarlis (No 2) are present in this appeal and, by analogy, the outcome should be the same. They assert, in particular: that it was necessary for the litigation guardian to commence the proceedings as the infant appellant was incapable of otherwise protecting his own interests; that the proceedings raised novel and important questions of law concerning the deprivation of liberty of an individual and the operation of the Migration Act; that Parliament passed laws after the proceeding was on foot restricting the appellant's further avenue of appeal or other judicial review; that there was no potential financial gain to either the appellant or his mother as litigation guardian; and the appellant's legal representation was provided without charge. 9 Generally speaking, the primary factor in deciding the question of costs is the outcome of the appeal. The respondent in this case has been entirely successful. Whilst the circumstances of this case have some resemblance to those in Ruddock v Vadarlis (No 2), there are also significant differences. For the reasons we are about to give, the circumstances of the case do not provide sufficient reason for us to depart from the ordinary rule as to costs. 10 It is the case that the appellant, an infant, could only commence and conduct the proceeding through a litigation guardian pursuant to r 9.61 of the Federal Court Rules 2011 (Cth). It is the litigation guardian, the appellant's mother, who will be liable under any adverse costs order: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113 (Williams J). It is therefore appropriate to consider the mother's motivation and actions in commencing and conducting the proceedings. 11 The mother would not, at least directly, have received any benefit from the appellant's success in the proceeding. Success would only have allowed the application for a protection visa made on the appellant's behalf to be considered by the respondent. The mother's apparent concern in bringing the appeal was to protect the rights of her child. These factors, while relevant, do not diminish the applicability of the rule that costs generally follow the event: see, for example, Oshlack v Richmond River Council at 97 [67] (McHugh J) and 120-123 [134] (Kirby J); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91 at 95 [15] (Emmett, McKerracher and Foster JJ); and Gondarra at [11] (Kenny J). 12 The present proceeding differs in its nature from the proceeding in Ruddock v Vadarlis (No 2). This appeal was concerned with construction of provisions of the Migration Act, but did not, in contrast to Ruddock v Vadarlis (No 2), involve any broader questions concerning the extent of executive power of the Commonwealth or Australia's obligations under international law. It is common for proceedings to be brought involving questions of construction of particular provisions of the Migration Act. In that respect, the present case is no different to many others. The fact that the appeal involves the rights of a child evokes sympathy but that cannot of itself militate against the usual order as to costs. 13 We do not accept the characterisation of the proceeding as one concerning the appellant's liberty. It was conceded that he is an unlawful non-citizen. The effect of s 189(1) of the Migration Act is that an unlawful non-citizen in the migration zone must be detained. The success of the proceeding would not have had any direct effect upon the liberty of the appellant. 14 The appellant submitted that the outcome of the appeal is likely to "affect many dozens, if not hundreds, of other children born in Australia in similar circumstances." However, no evidentiary basis is established for that submission. Further, it is a common feature of cases involving the construction of a statutory provision that the Court's decision has consequences beyond the interests of the immediate parties. We do not consider that the fact that there may be broader consequences of the Court's decision weighs significantly in this case upon the question of costs. 15 After the Court reserved its decision upon the appeal, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) came into effect. The appellant submitted that the legislative changes are likely to be intended to restrict any rights of the appellant, and others like him, from any further appeal or other review and that this is a factor weighing against an award of costs against him. If that is the effect of the legislation, it is difficult to see why it should affect the question of costs in the present appeal. The appellant's submission seems to invite a conclusion that an appeal is likely to have been successful if not for the amendments; but that is not a conclusion we would reach. Further, the appeal was not decided on the basis of the legislative amendments, but upon the legislation as it stood when the respondent's delegate made the decision that was the subject of the application for review. It is not suggested that the appeal would not have been brought or would have been discontinued if the legislation had been enacted earlier. 16 The fact that the appellant was provided with pro bono legal advice is not, of itself, a factor that should deprive the successful party of its costs: see, for example, Microsoft Corporation v Marks (No 2) (1996) 69 FCR 144 at 146 (Lindgren J, with whom Beaumont and Lehane JJ agreed); Gondarra at [13] (Kenny J). 17 The circumstances of the present appeal differ from those in Ruddock v Vadarlis (No 2) in another significant respect. In that case, the appellants were successful at first instance, but failed on an appeal brought by the respondents. In the present case, the appellant was unsuccessful at first instance and then elected to appeal and was again unsuccessful on appeal. 18 We consider that the factors relied on by the appellants do not, individually or collectively, justify a departure from the ordinary rule as to costs. 19 The appellant's written submissions also contend that the Court should set aside the order for costs made by the Circuit Court against the appellant. The order made by Kenny J on 18 December 2014 allowed the parties to file and serve submissions "on the issue of the costs of the appeal." The submission made by the appellant concerning the costs of the proceeding in the Circuit Court goes further than was permitted by that order. That submission should not have been made without leave being sought and obtained to do so: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 159 [191]-[192] (McHugh ACJ, Gummow, Callinan and Heydon JJ); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330 [29]-[31] (McHugh J). 20 In any event, the appellant has not demonstrated any basis upon which the costs order made by the Circuit Court may be set aside. The appellant submits merely that the reasons why the exercise of the Circuit Court's discretion as to costs should be held to have been wrongly exercised are the same as in respect of the costs of the appeal. That amounts to no more than a submission that the Circuit Court ought to have made a different decision. The appellant makes no attempt to demonstrate that the discretion of the Circuit Court miscarried by reason of an error of the kind described in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt, McTiernan JJ), the principles stated therein applying to an appeal against an order for costs: see Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222 (Bowen CJ, Morling and Gummow JJ); Cummings v Lewis (1993) 41 FCR 559 at 604 (Cooper J, with whom Sheppard and Neaves JJ agreed). 21 For these reasons, the Court would order that the appellant pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Edmonds & Rangiah.